Ramirez v. USA
Filing
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MEMORANDUM OPINION AND ORDER: The motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE as time-barred. (Ordered by Judge Ed Kinkeade on 11/16/2017) (epm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAIME ALEJANDRO RAMIREZ
(BOP Registration No. 47007-177),
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 3:16-CV-2276-K
(3:13-CR-324-K-(1))
MEMORANDUM OPINION AND ORDER
Movant Jaime Alejandro Ramirez, a federal prisoner, proceeding pro se, has filed
a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence. See Dkt.
No. 2. Because his Section 2255 motion is barred by the statute of limitations, for the
reasons set forth below, the Court DISMISSES the motion with prejudice.
Background
Ramirez pleaded guilty to unlawful possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). See United States v. Ramirez, 3:13-CR-0324-K-(01)
(N.D. Tex.), Dkt. No. 26. The Court sentenced him to 70 months in prison. See United
States v. Ramirez, 3:13-CR-0324-K-(01) (N.D. Tex.), Dkt. No. 32. That judgment was
entered on April 16, 2014. See id. Ramirez did not appeal.
In June 2016, Ramirez sought permission from the United States Court of
Appeals for the Fifth Circuit to file a second or successive 28 U.S.C. § 2255 motion.
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See In re Ramirez, No. 16-10931 (5th Cir. 2016). The Fifth Circuit transferred his
Section 2255 motion to this Court because, as it was his first, he did not need
authorization before filing it. The Fifth Circuit noted that Ramirez’s Section 2255
motion would deemed filed on June 27, 2016—“the date the motion for authorization
was received in this court.” See In re Ramirez, No. 16-10931 (5th Cir. Aug. 5, 2016).
The government responds that his Section 2255 motion is untimely, see Dkt. No. 8 at
3-5, and Ramirez has not filed a reply.
Statute of Limitations
“[Section] 2255 establishes a ‘1-year period of limitation’ within which a federal
prisoner may file a motion to vacate, set aside, or correct his sentence under that
section.” Dodd v. United States, 545 U.S. 353, 356 (2005). It states:
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of –
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
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(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Here, under Section 2255(f)(1), Ramirez’s limitations period
began to run when his judgment of conviction became final. His conviction became
final on April 30, 2014, when his time to file a direct appeal expired. See FED. R. APP. P.
4(b)(1)(A)(i) (stating that an appeal in a criminal case must be filed within fourteen
days of the entry of judgment); see also United States v. Plascencia, 537 F.3d 385, 388 (5th
Cir. 2008) (holding that, where a federal prisoner does not file a direct appeal, his
conviction becomes final when his time to do so expires). His limitations period expired
one year later, on April 30, 2015.
To the extent that Ramirez attempts to rely on Johnson v. United States, 135 S. Ct.
2551 (2015) to reset the statute of limitations under Section 2255(f)(3), his reliance is
misplaced. In his initial application for authorization, Ramirez indicated—by checking
two boxes on a form pleading—that he was challenging a conviction for violating the
Armed Career Criminal Act, and a sentencing enhancement under U.S.S.G. § 4B1.2, as
unconstitutional after Johnson. Johnson held “that imposing an increased sentence under
the
residual
clause
of
the
Armed
Career
Criminal
Act,”
18
U.S.C.
§
924(e)(2)(B)(ii)—which clause defines a “violent felony” as one “involv[ing] conduct
that presents a serious potential risk of physical injury to another”—“violates the
Constitution’s guarantee of due process.” 135 S. Ct. at 2563.
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But Johnson has no application here because Ramirez was not convicted of
violating the Armed Career Criminal Act or sentenced as a career offender under
Section 4B1.2. Moreover, to the extent that Ramirez is attempting to extend the rule of
Johnson to challenge any other provision in the United States Sentencing Guidelines,
“the Guidelines are not subject to a vagueness challenge under the Due Process Clause.”
Beckles v. United States, 137 S. Ct. 889, 892 (2017). Because Johnson has no impact on
Ramirez’s convictions or sentence, his statute of limitations began to run on the date
that his conviction became final. See, e.g., Johnson v. United States, No. 3:16-CV-1603-D,
2017 WL 2348806, at *1 (N.D. Tex. Apr. 13, 2017), rec. adopted 2017 WL 2335617
(N.D. Tex. May 30, 2017) (holding that Section 2255(f)(3) does not apply to a claim
that a definition in the United States Sentencing Guidelines was void for vagueness in
light of Johnson). Ramirez’s one-year statute of limitations expired in April 2015, and
his first Section 2255 motion—filed in June 2016—is untimely in the absence of
equitable tolling.
“[T]he statute of limitations in § 2255 may be equitably tolled in ‘rare and
exceptional circumstances.’” United States v. Patterson, 211 F.3d 927, 930 (5th Cir.
2000). “[A] litigant is entitled to equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016)
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(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The United States Supreme
Court recently reaffirmed “that the second prong of the equitable tolling test is met
only where the circumstances that caused a litigant’s delay are both extraordinary and
beyond its control.” Id. at 756 (emphasis in original).
Here, Ramirez presents no argument or evidence that extraordinary
circumstances prevented him from filing his motion to vacate earlier, and no grounds
for equitable tolling are apparent to the Court. Because he has not met his burden to
establish circumstances warranting equitable tolling, his Section 2255 motion is
time-barred.
Conclusion
For the foregoing reasons, the motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. § 2255 is DISMISSED WITH PREJUDICE as
time-barred.
SO ORDERED.
Signed November 16th, 2017.
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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